G C D A Vs. HARRISONS MALAYALAM LTD

JUDGEMENT

(1.) ENTERTAINING doubt about correctness of view/conclusions arrived at by a Division Bench in Mohammed Hariss v. Fathima (1993 (1) KLT 558)as regards the scope of O. 38 R. 5 of the Code of Civil Procedure, 1908 (in short 'c. P. C. ') vis-a-vis 0. 21 R. 46 thereof in a given factual background, learned single Judge has made reference to larger Bench.

(2.) A brief reference to the factual aspects would suffice. M/s. Harrisons Malayalam Ltd. (hereinafter referred to as the 'plaintiff') had filed O. S. No. 713 of 1998 before the Subordinate Judge's court, Ernakulam. Plaintiff filed the suit for recovery of money from M/s. Hindustan Steel Works Construction Ltd. (hereinafter referred to as 'defendant' ). On an application, I. A. No. 6424 of 1998, filed by the plaintiff under O. 38 R. 5 CPC, O. 21 R. 46 r/w. S. 151 CPC there was an order of attachment of Rs. 7 Crores from the Greater Cochin Development Authority (hereinafter referred to as the garnishee ). Learned Subordinate judge passed an order on 23. 12. 1998 prohibiting the garnishee from making any payment to the defendant. Notwithstanding this order payment of Rs. 50 lakhs was made by the garnishee to the defendant. LA. No. 1708 of 1999 was filed by the plaintiff for a direction to the garnishee, in terms of O. 21, R. 46, to deposit Rs. 50 lakhs in Court. The garnishee was required to deposit in Court Rs. 50 lakhs or such other amounts they have paid to the defendant after the order of attachment was served on it.

(3.) THE only question in relation to 0. 38 R. 5 which needs to be considered is whether any defect in a notice with Form No. 5 (Appendix F)would render the order of attachment void. THEre is no reference to the form in o. 38 R. 5. Use of forms in the appendices is dealt with in O. 48 R. 3. Same reads as follows: "0. 48 R. 3: Use of forms in appendices: THE forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purpose therein mentioned. " THE provision itself provides that the forms given, with such variations as the circumstances of each case may require, shall be used. Forms contained in the appendices to the Code do not form part of the Code. It is sufficient if there is substantial compliance with the forms. All rules of court are nothing but provisions intended to secure proper administration of justice. It is therefore essential that they should be made to serve and be subordinate to that purpose. Procedure is handmaid and not the mistress of law intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Any clerical or non-substantial error in the form which does not dilute the substance or the contents would not make it void. Otherwise substance would yield to form which is never the intention of law. Issuance of notice in a particular form is a matter of procedure. But that question is really of academic interest in the present case as we are concerned with the role of garnishee as provided in 0. 21 R. 46 CPC. THE extent of objection that can be raised by the garnishee or the stand that can be taken by it is clearly mentioned in the provision itself. THErefore, the garnishee cannot question or raise a dispute beyond what has been specifically provided in 0. 21 R. 46 and connected provisions.